Boateng v Sutherland Shire Council

[2020] NSWLEC 1280

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boateng v Sutherland Shire Council [2020] NSWLEC 1280

Hearing dates:

Conciliation conference on 19 June 2020

Date of orders:

29 June 2020

Decision date:

29 June 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1)   Leave is granted to the Applicants to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicants are to pay the costs of the Respondent that were thrown away as a result of amending the development application in the amount of $5,000, those costs being payable by 24 July 2020.

(3)   The appeal in respect of the property known as 25 and 27 Violet Street, Miranda is upheld.

(4)   Development Application DA17/0902 for the demolition of existing structures and construction of a multi dwelling housing development consisting of 5 townhouses with associated basement car parking, landscaping, and associated works at 25 and 27 Violet Street, Miranda is approved subject to the conditions at Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land

Sutherland Shire Local Environmental Plan 2015

Texts Cited:

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Kelly Boateng (First Applicant)
Kelvin Boateng (Second Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
C Rose (Solicitor) (Applicants)
J Amy (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicants)
Sutherland Shire Council (Respondent)

File Number(s):

2019/174548

Publication restriction:

No

Judgment

1. COMMISSIONER: Kelly Boateng and Kelvin Boateng (the Applicants) have appealed the refusal by Sutherland Shire Council (the Respondent) of their development application DA17/0902 for demolition of existing structures and construction of a multi-dwelling housing development consisting of five townhouses with basement car parking, landscaping and associated works (the proposed development) at 25 and 27 Violet Street, Miranda (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction.

3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 31 January 2020, and I had presided over that conciliation conference. As part of that conciliation conference, I undertook an inspection of the Subject Site and surrounds.

5. A further conciliation conference under s 34 of the LEC Act was listed for 19 June 2020 and I have also presided over that conciliation conference.

6. At the conciliation conference on 19 June 2020, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicants’ modification application, subject to conditions.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties’ decision if the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. the Development Application was made with owner’s consent;

2. the Proposed Development, characterised as a five-unit multi-dwelling housing development, is permissible with consent on the Subject Site, which is zoned R2 Low Density Residential under the provisions of cl 2.3 of Sutherland Shire Local Environmental Plan 2015 (SSLEP);

3. the Proposed Development complies with the height of buildings development standard applicable to the Subject Site under the provisions of cl 4.3 of SSLEP;

4. the Proposed Development complies with the Floor Space Ratio (FSR) development standard applicable to the Subject Site under the provisions of cl 4.4 of SSLEP;

5. the Parties advise that they have considered the provisions of cl 6.2(3), of SSLEP (concerning earthworks) and that they are satisfied, as am I, that the matters identified in that clause have been satisfactorily addressed by the Applicants within their Proposed Development;

6. the Parties have advised that that the Proposed Development has satisfactorily addressed the matters within cl 6.3(3) of SSLEP (concerning flood planning), and I am also satisfied that this is the case;

7. the Parties advise that they are satisfied, as am I, that the Proposed Development has satisfactorily addressed the matters within cl 6.4(3) of SSLEP (concerning stormwater management);

8. the Applicants’ development application has considered the matters related to whether the Subject Site is contaminated as required under cl 7(1) of the State Environmental Planning Policy No 55—Remediation of Land;

9. the Applicant has provided an updated BASIX certificate (no. 840874M-03) dated 23 April 2020 in satisfaction of the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

9. The Parties have explained, and I accept, that the above jurisdictional prerequisites have been satisfied.

10. The Respondent also advised that it was satisfied that the matters raised by objectors in response to notification of the Applicants’ Proposed Development, as well as during the on-site view on 30 January 2020, had been satisfactorily resolved by the Applicants’ amended plans.

11. Having considered the advice of the Parties, provided above at [8] and [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

12. I am further satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

13. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties’ decision.

14. The Court orders that:

1. Leave is granted to the Applicants to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicants are to pay the costs of the Respondent that were thrown away as a result of amending the development application in the amount of $5,000, those costs being payable by 24 July 2020.

3. The appeal in respect of the property known as 25 and 27 Violet Street, Miranda is upheld.

4. Development Application DA17/0902 for the demolition of existing structures and construction of a multi dwelling housing development consisting of 5 townhouses with associated basement car parking, landscaping, and associated works at 25 and 27 Violet Street, Miranda is approved subject to the conditions at Annexure “A”.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (254410, pdf)

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Decision last updated: 01 July 2020